Crabb ruled the government could not use its authority to try to influence when and whether individuals pray, writing: “In this instance, the government has taken sides on a matter that must be left to individual conscience.”…

The administration had argued the law simply acknowledges the role of religion in the United States.

What is that supposed to mean? And how can a law merely “acknowledge” something? And even if it could why should even that be the president’s business? Even if the law ordered the president to announce once a year that religion has a role in the United States, that would still be the state pushing religion on people instead of keeping its mouth shut on the subject. The state saying that religion has a role in the United States carries a wealth of implication with it, and that’s why it shouldn’t do it; and National Prayer Day mandates a good deal more than merely announcing religion’s “role” anyway.
I’m aware that religion has a role in the United States, and I’m tired of that role, and I’m tired of having it forced on my attention, and I would like it to withdraw a considerable distance and mind its own business.

The Justice Department signaled it would appeal not only Crabb’s decision on the merits of the case but also her ruling last month that the defendants had the standing to bring the lawsuit in the first place.

Well, I hope you lose, Justice Department. You piss me off and I hope you lose.

Perhaps the best solution for the plaintiffs would be to offer a compromise: they’d withdraw their suit and accept a National Day of Prayer if the administration would allow equal time and proclaim a National Day of Blasphemy. Works for me.

Our president is a sharp, machiavellian political operator. I fully expected his administration to react this way and, at the risk of provoking the list, I have to say that I’m glad it did. The Christian right in the US thrives on perceived persecution. American secularism will be better served by having the appeal fail in the courts.

It became apparent soon after the decision that this would happen. I don’t think the adminstration has any practical choice but to fight these cases all the way up to the Supreme Court if necessary.

What I find most disturbing isn’t the challenge to the merits of Justice Crabb’s opinion – it’s the challenge to standing. These sorts of laws don’t lead to anyone in particular being locked up or losing a property interest or otherwise being disadvantaged. Their effect is on all Americans, as the wrong that they do is expressing government support for religion, contrary to the constitution (on current Supreme Court doctrine). That really means that anyone should have standing to challenge them. As far as I can see, it has to be either anyone or no one – and surely it can’t be right that there are laws that it’s unconstitutional to enact, while no one has standing to challenge them.

I believe that the Attorney General is obliged to defend laws when they are challenged, regardless of whether the administration agrees with the laws. In other words, let’s not assume that the President (who has not taken a public role in NDP) has some active desire to overturn the ruling.

The Executive Branch (acting through the Attorney General and Solicitor General in the Dept. of Justice) always technically has a choice about which adverse federal court decisions to appeal and which ones not to appeal. But in this specific situation, Josh Rosenau is right: The Obama Administration feels strongly impelled to appeal this decision because of the subject matter (Never let an attack on American “cereomonial deism” go unanswered).

The challenge to an individual litigant’s standing-to-sue is used frequently by the federal government (no matter which of the 2 major parties hold the White House) because it works, mate, in Establishment Clause litigation. It worked several times against Michael Newdow. It worked when (if memory serves me correctly) the 7th Circuit reversed a U. S. District Court decision that held that blatantly Christian / sectarian public prayers on the floor of the Indiana General Assembly were an Establishment Clause violation (Hinrich v. Bosma).

The Obama Administration is appealing this ruling because Executive Branch officials who are at most “believers in belief” and who would really prefer to have less National-Day-of-Prayer-type entanglements between government and religiosity (and I’m including the President in this group, as a good guess) are quite frankly just ground down and worn out by the greater numbers of would-be theocrats, and by an acute awareness of where their political bread is buttered.

No U.S. Administration, and no member of Congress, can afford (politically) to continue to pay at least thin lip service to the general religosity of America. Upon reasonably close examination, this “general religiosity” is 3,000 miles wide but, on average, only about half an inch deep. Still, it’s crucial that elected officials (with rare and odd exceptions such as Pete Stark) pay obiesance to this religiosity, even if the lip service is “as thin as the roast beef at the boarding house”).

I think it was Justice O’Connor who called it “ceremonial deism”; it’s the dodge that has allowed Congressional chaplains, the opening of legislative sessions with bland non-sectarian prayers, “In God We Trust” on U. S. money, etc., even though James Madison was on record as opposing the first two and would have opposed the third.

Our elected officials’ subjectively-felt “obligation” to kowtow to vague religiosity also underlies the recent decision of the “freakin’ West Coast liberal” 9th Circuit Court of Appeals, where a majority of the panel (2 out of 3) ruled against Michael Newdow earlier this spring and concluded, against the clear historical record and legislative history, that the insertion of “under God” into the Pledge of Allegiance in 1954 was not religiously motivated and did not violate the Establishment Clause. I think the majority knew otherwise; they were just intellectually and emotionally worn out from bashing their heads against the wall of “ceremonial deism” and vague public religiosity.

Sorry, I meant to say that no elected official in the U.S. can afford not to continue to pay lip service to vague public religosity . . . . Much as I’d like to see that change.

It’s unfortunate that for Free Exercise clause reasons, the Bureau of the Census could not ask questions about religious affiliation (or the lack of it) in the extremely detailed American Community Survey questions that were sent to many households separately from the 2010 Census forms. If our elected officials could see (from a huge sample population) the growing numbers of Americans who are not just religiously unaffiliated but lacking any significant religious belief whatsoever, they might be less timid in pointing out that the Emperor has no clothes.

As tomh points out over at my blog, the bad guys now have the numbers on the Supreme Court. If current law, i.e. the endorsement test, is applied, the appeals should fail, because this law is surely an endorsement of religion. But it looks like there are now 5 judges who will be prepared to change the law to something more permissive of mingling church and state. Given how unstable this has been, they won’t even be held back by any strong line of precedent.

Sorry to be a bearer of bad tidings, but I’m sure no one was optimistic anyway. Still, the appeals court should reject the appeal. Based on case law to date, Judge Crabb’s opinion is clearly correct.

No, I wasn’t at all optimistic, and I’m sharply aware that the Supreme Court has a majority of theocrats and near-theocrats. (It also has six Catholics.) There’s very little likelihood that Obama will get to replace any of the theocrats – it’s probably that the best he’ll be able to do is to replace “moderates” with “moderates.” No actual improvement in the Court likely for decades.

I’m not assuming that Obama has an active desire to overturn the ruling on principle. But the appeal pisses me off all the same. However inevitable and understandable and pragmatically necessary it may be, I remain pissed off about it.

I call total bullshit on the appeal being ‘necessary’ and people just sighing and nodding. That’s like saying it’s ‘necessary’ to constantly check, censor & carve-up our freedom of speech for fear of what the Muslim fanatics might do; in either case, we’re allowing theists to blow out the candlelight of enlightenment.

If the White House won’t fight for one of the founding principles of your country, then that principle may as well be scratched-out. It becomes nothing more than a sinister parody.

I call total bullshit on the appeal being ‘necessary’ and people just sighing and nodding. That’s like saying it’s ‘necessary’ to constantly check, censor & carve-up our freedom of speech for fear of what the Muslim fanatics might do; in either case, we’re allowing theists to blow out the candlelight of enlightenment.

If the White House won’t fight for one of the founding principles of your country, then that principle may as well be scratched-out. It becomes nothing more than a sinister parody.